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Criminal Revision No. 33 of 1958, decided on 18th March 1958.
S. 379 "Intending to take dishonestly"‑Mere taking without consent‑Does not prove dishonesty.
Section 379 of the Penal Code, 1860 begins with the words "intending to take dishonestly"; it does not mean that if a thing is taken without consent it must mean that the intention was to take dishonestly. Mere taking without consent does not prove dishonesty and therefore in such a case a charge of theft under section 379 of the Penal Code, 1860 is not sustainable.
Abu Md. Abdullah for Petitioner.
D. C. 'Roy for S. K. Bose for Opposite‑Party.
This Rule is directed against an order, dated 21st November 1957, passed by Mr. A. B. Md. Mazharul Huq, Sessions Judge, Bakarganj, in Criminal Appeal No. 7 (3) of 1957 dismissing the appeal of the petitioners from the order, dated 23rd July 1957, passed by Mr. M. A. Join, Magistrate, First Class, Bakarganj, in G. R. Case No. 399 of 1956, convicting each of the accused petitioners numbering 25 under sections 147 and 379 of the Pakistan Penal Code, and sentencing them to pay a fine of Rs. 60 each under section 379 of the Pakistan Penal Code only, and ordering Rs. 1,000 to be paid to the complainant as Secretary, Baro‑Paika Primary School.
2. The case against the petitioners numbering 25 men is that they had committed theft by the physical removal of a whole school from one site to another under the following circumstances. There was a Primary School known as Baro‑Paika Primary School located in C. S. Plots Nos. 2621 and 2641 of village Ashkar in the house of late Walimuddin Mollah, father of complainant Afsaruddin Mollah. In 1943, this site was officially approved by the District School Board on the re-com mendation of the site Selection Committee, and the owner of the land, namely, Walimuddin Mollah, executed a deed of gift in favour of the School Board. This School was later converted into a Free Primary School, and a Managing Committee was formed with some 5 of the accused persons as members, and the complainant as Secretary.
3. As is usual in our villages, party factions sprang inside the Managing Committee of the School culminating in the events we are called upon to Judge, namely, that on the 18th September 1956, a body of men including those before us under conviction and sentence physically removed the School with all its belongings from its original site, and re‑raised it at a spot very close by.
4. Mr. Abu Md. Abdullah, the learned Advocate for the petitioners, has urged that whosoever offence these men may have committed by dismantling and removing the School, they have not committed theft. His ground is that those who removed it, that is, his clients were members of the Managing Committee of the School. The admitted having removed the School openly in broad day‑light. Their stand is that the School belonged to the public, nobody having proprietary right over it, and they have no dishonest intention in taking the School to the present site from its original site where it was under the domi nation of the Secretary, that is the complainant.
5. Mr. Abdullah also urged that the common object being the theft, the charge under section 147 of the Pakistan Penal Code will fall along with the charge for theft.
6. Mr. Roy for the 'other side has contended that theft committed, because possession was with the Secretary of the School (the complainant). It matters not, according to him, whether the accused profit by the theft, and it is sufficient if it caused loss to the person to whom it belonged, namely, the Secretary.
7. The primary test seems to be the mens rea involved, whether the taking was taking with dishonest intention. The facts of the case may well attract the plea of bona fide claim of right. It cannot be denied that the School which originally started as a personal achievement of Walimuddin Mollah, father of the complainant, gradually took a public aspect; that Plots Nos. 2621 and 2641, wherein it started, was later gifted to the School Board. On 1st January 1944, it was turned into a Free Primary School by the District School Board, and was called the Baro‑Paika Free Primary School under the control of a big Managing Committee of which some of the accused were members. The School practically vested in the public under the control of a Managing Committee. It may be true that technically it may be in the possession of the Secretary who was one of the many members of the Committee including the accused But taking out of his possession without his consent is not, in my opinion, sufficient for the purpose. Section 379 of the Pakistan Penal Code begins with the words "intending to take dishonestly": it does not mean that if it is taken without consent it must mean that intention is‑ to take dishonestly. It is true that there is no evidence of consent of the Secretary whose very possession is doubted.
8. According to P. W. 3, the School has been re‑erected within 500 to 600 cubits of its original site. According to P. W. 11, the Sub‑Inspector of Schools, a respectable witness, here was a petition made by the accused party for shifting of the School, and he forwarded the petition to the proper authorities, but no answer was received yet. He admitted in cross‑examination that he approved the site where the School has been re‑erected after the occurrence. He also said that he submitted his report to the District School Board to that effect. He also admitted that he mentioned the name of two of the accused as likely donors in case of shifting of the School to its present re‑erected site.
9. D. W. 1 who is an I. A. and is a quite a respectable witness deposed that a meeting was held over the affairs of the School, and in a meeting over which the Sub‑Inspector himself presided, it was resolved that the School should be shifted to its present site. Of course this was not put to the Sub‑Inspector himself in cross‑examination.
10. From the above, very little doubt is left ‑as to the bona fides of the accused party. At any rate, it is not a case of mere pretence. Village folks are gullible and credulous. A Sub‑Inspector of Schools is a very important person in the village, and once it got abroad that he had forwarded the petition of the accused party in favour of shifting the School they took it that it was done.
11. The Courts below have not considered the force of the opening words of section 379 carefully, and have concluded h dishonesty from the mere taking without consent.
12. Under these circumstances, the charge of theft is bound to fail, and along with it falls the charge under section 147 of the Pakistan Penal Code, the common object being theft.
13. The Rule is, therefore, made absolute, and the con viction and sentence of the petitioners set aside.
K. B. A. Rule made absolute.
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